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[2024] ZALCJHB 180
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SACCAWU obo Dlamini v Commission for Conciliation, Mediation and Arbitration and Others (JR2281/21) [2024] ZALCJHB 180 (29 April 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR2281/21
In the matter between:
SACCAWU
o.b.o. WONDER
DLAMINI
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
DAVID
SELLO
N.O.
Second Respondent
CHOPPIES
HEBRON
Third Respondent
Heard:
25 April 2024
Delivered:
29 April 2024
This
judgment was handed down electronically by circulation to the parties
and/or legal representatives by email. The date for hand-down
is
deemed to be 29 April 2024.
JUDGMENT
MAKHURA,
J
[1]
This review
application is against the arbitration award (award) issued by the
second respondent (commissioner) under the auspices
of the Commission
for Conciliation, Mediation and Arbitration (CCMA), the first
respondent in these proceedings. The commissioner
found the dismissal
of Mr Wonder Dlamini (employee) fair and dismissed his unfair
dismissal dispute. The application was brought
in terms of section
145 of the Labour Relations Act
[1]
(LRA). The application is opposed by the third respondent (company).
[2]
The employee was charged with and dismissed for unlawful removal of
company
property in that on 20 March 2020, he removed the company’s
property (lemon juice) without approval or authorisation.
[3]
The company’s star witness was Patricia Chauke (Chauke), who
was
employed as a security guard. Her evidence was that on 20 March
2020, the employee took an empty bottle and went to the bakery
section. When the employee came back from the bakery section, he was
carrying the same bottle with lemon juice inside. The employee
went
through the security checkpoint, where he was searched and went
outside. Chauke became suspicious of the substance contained
in the
bottle and went to look for her supervisor. She spoke to her
supervisor (Jonathan) and they both went to the parcel counter,
where
the employee left his bag. The parcel counter is situated within the
store. Jonathan took the employee’s bag from the
parcel counter
and searched it - Chauke testified that Jonathan “
took the
bottle out of [the employee's] bag and went to the fridge
”.
The reference to the fridge is the cold room. Chauke, Jonathan and
the manager went to taste the contents of the bottle.
They concluded
that the substance contained in the bottle was lemon juice. The
tasting happened in the absence of the employee.
[4]
With reference to the video footage that was produced as part of the
evidence,
Chauke testified that the employee was seen picking a
bottle of lemon juice from the floor and going to the cold room. At
the time
of entering the cold room, the employee had an empty bottle
he collected earlier from Chauke and a bottle of lemon juice. The
employee
was then seen exiting the cold room with a bottle that
contained a substance. He went to the security checkpoint where he
was searched
by another security guard and went outside. Chauke
blamed the security guard who was searching the employee for not
doing his job.
She said that the security guard did not perform his
work properly.
[5]
Chauke further testified that the employee threatened her and she had
to call her brother to accompany her home.
[6]
During cross-examination, Chauke was asked about the substance
contained
in the bottle that the employee was carrying when he exited
the cold room and when he was searched at the security checkpoint.
She was specifically asked why she said the bottle contained lemon
juice. She responded:
‘
MS PATRICIA
CHAUKE:
Because he get (sic) to the door, having it in his
hand. I as a security,
I felt that what he has in his hand, it is
similar to lemon juice, that is why I got suspicious
.’ (Own
emphasis)
[7]
The employee disputed during cross examination that he threatened
Chauke.
The employee’s version was not materially different to
Chauke’s evidence, except for the substance contained in the
bottle. He testified that he asked Chauke for an empty bottle, took
it from where Chauke pointed and went to the bakery section.
He
poured tap water into the bottle and then proceeded to the cold room.
On his way, he picked up a bottle of lemon juice that
was on the
floor and went inside the cold room. There are no cameras in the cold
room. He came out of the cold room with one bottle,
which the company
alleged was lemon juice and the employee alleged that it was water.
He proceeded to the security checkpoint where
he was searched, with
his hands up in the air and holding the bottle. After a search by the
security guard, the employee then went
outside. He came back later,
went to the parcel counter, and placed the bottle inside his bag. His
evidence was that the substance
in the bottle, at the time of exit
was water and that when he returned, the bottle contained traditional
medicine.
[8]
The commissioner summarised the evidence as follows:
‘
In this matter,
the [company] contends that the Applicant put lemon juice inside the
bottle he got from the counter. The Applicant
contends that he put
water in the bottle from the taps. On the video footage, the
Applicant is not seen putting water inside the
bottle but taking
lemon juice from the floor and going inside the cold room. At that
time, he is also holding a bottle, not showing
whether the content is
water or juice. It is only after the Applicant returned from the cold
room where there is no camera footage
that the bottle, he had in his
hand is now containing a substance that is clearly not water. I am
saying this because the content
of the bottle did not look
colourless. This is seen at the point where the Applicant is holding
the same bottle and seem to be
assisting a person who appeared to be
a customer.’
[9]
The commissioner then refers to the threats allegedly made by the
employee
against Chauke. It was common cause that although Chauke
reported the alleged threats by the employee, the company did not
discipline
the employee. Further, Chauke did not lay a criminal case.
The commissioner found that:
‘
The Applicant
refuted the allegation by stating that management could have taken
the threats serous and investigated the matter,
but nothing was done
by management in as far as the threats were concerned.’
[10]
In the next paragraph of the award, the commissioner continued:
‘
The Applicant is
not disputing that … Patricia Chauke was accompanied by her
brother at the station. I will accept that there
were threats made by
the Applicant to her.
This finding is informed by the Applicant’s
failure to refute the allegation that he threatened Patricia to the
extent that
her brother was involved in her protection.
Having
accepted that Patricia was threatened by the Applicant,
I will
also on a balance of probabilities conclude that the threat emanated
from the issue pertaining to the lemon juice
…’ (Own
emphasis)
[11]
In conclusion, he found:
‘
I accept that
the Applicant was not involved when management tasted the contents of
the bottle. It cannot be fair to simply attach
the blame on the
Applicant about the contents of the bottle if he did not know whether
the bottle they used to taste belonged to
him and whether the
contents they tasted was in fact juice.
I accept that the
Applicant was supposed to be part of the tasting or at least be
present when the tasting is (sic) done. However,
the threats the
Applicant made to Patricia Chauke did not come from any other
differences that the Applicant had with her other
than that she said
that he had a bottle a (sic) lemon juice. It is in my view that the
Applicant raised the threat because he was
angered by what …
Patricia said. This finding is in addition to what was viewed on the
footage in the bakery department
before the Applicant exited, which
was not water.’ (Own emphasis)
[12]
The commissioner dismissed the procedural challenge. He concluded
that the employee’s
dismissal was procedurally and
substantively fair and proceeded to dismiss his unfair dismissal
claim.
[13]
The employee challenges the award on the basis that the commissioner
committed several
errors. He referred to a number of instances of
alleged errors, most of which are, in my view, immaterial. For
instance, the commissioner
appeared to have quoted the incorrect
charge. However, nothing turned on this as it is clear in his summary
and analysis of evidence
and facts that the commissioner dealt with
and addressed the correct charge. Mr Khanya, appearing for the
company, agreed that
this is of no material consequence. The
commissioner is also criticised for being lazy and failing “
to
pay attention to the facts placed before him
”.
[14]
The employee further contends that the commissioner incorrectly found
that the employee
did not challenge the evidence led by Chauke that
he threatened her. In short, the employee’s complaint is that
the commissioner
committed errors and failed to apply his mind to the
evidence which is borne out by his incorrect factual findings.
[15]
The test to
review an award is as set out in
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[2]
.
It is well established that in determining whether an award is liable
to be reviewed and set aside, this Court is required to
determine
whether the decision reached by the commissioner is one that a
reasonable decision-maker could not reach.
[16]
In
Makuleni
v Standard Bank of SA (Pty) Ltd and others
,
[3]
the Labour Appeal Court (LAC) held that the award may be reviewed and
set aside only if the conclusions are untenable.
[17]
In
Duncanmec
(Pty) Ltd v Williams Itumeleng NO
and
others
,
[4]
the LAC restated the common basis upon which awards are reviewed:
[5]
‘
The principles
relating to review of arbitration awards are now trite and need not
be restated. Suffice to say that arbitration
awards may be set aside
if the award is disconnected from the evidence resulting in an
unreasonable outcome.’ (Own emphasis)
[18]
It is trite
that the enquiry into substantive fairness of a dismissal is two-fold
– first, a determination whether the employee
is guilty of the
allegation/s of misconduct and if so, second, an enquiry into the
appropriateness of sanction.
[6]
The onus is on the employer to prove the fairness of dismissal by
proving guilt and appropriateness of sanction.
[19]
On the merits, the commissioner found that the employee threatened
Chauke, and concluded
that he threatened her because of the issue
pertaining to the lemon juice. He found in one instance that the
evidence of Chauke
relating to the threats was refuted but later
found that this evidence was not refuted. The record shows that the
employee put
to Chauke during cross-examination that she was
misleading the commission and that if she was threatened, the company
would have
charged the employee. It was directly put to her that she
was “never threatened”. However, Chauke insisted that she
was.
[20]
The commissioner then concluded that the employee is guilty of
unlawful removal of company
property because the threats emanated
from the lemon juice incident. The reasoning and finding are unsound.
The employee was not
charged with threatening Chauke. The connection
or link the commissioner seeks to draw between the alleged threat and
the misconduct
is irrational. Even if it is accepted that the
employee threatened Chauke, that does not prove that the bottle found
in his bag
contained lemon juice. The commissioner was distracted by
and placed unnecessary focus on the irrelevant evidence relating to
the
alleged threats and thereby diverted from the correct path in the
conduct of the arbitration. The result is the untenable and
unreasonable
conclusions that he reached.
[21]
The company
had to prove that the bottle allegedly removed from the employee’s
bag contained lemon juice. The company failed
to discharge its onus.
The investigation, which involved taking and searching the employee’s
bag without his authorisation
or permission and in his absence was,
in my view, not only clumsily and poorly conducted, but it also
violated the employee’s
fundamental right to privacy enshrined
in the Constitution.
[7]
[22]
The commissioner’s decision is contradictory and untenable. On
the one hand, he found
that the employee could not have known that
the bottle used when tasting the content belonged to him. He found
that it would be
unfair to blame the employee if he did not know
whether the bottle the company used to taste the substance belonged
to him and
whether the contents they tasted were in fact lemon juice.
However, he immediately thereafter placed reliance on the alleged
threats
and found the employee guilty of unlawful removal of the
substance contained in the bottle.
[23]
The commissioner has misconceived the enquiry, embarked on a wrong
enquiry and failed to
apply his mind to the evidence and essentially
found the employee guilty based on unproven circumstantial facts.
[24]
Having found the employee guilty, he failed to engage in an enquiry
into the appropriateness
of sanction. The commissioner’s
failure to consider the appropriateness of the sanction is a material
irregularity sufficient
to set aside the award. The award is not
sustainable and stands to be reviewed and set aside.
[25]
On the evidence presented before the commissioner, the company failed
to discharge its
onus that the employee was guilty of the offence and
that the sanction of dismissal was appropriate. Even if the employee
is guilty,
there was no evidence led by the company to show that the
employee’s misconduct led to an irretrievable breakdown of the
employment relationship. The failure to lead evidence on the
appropriateness of the sanction is a choice the company made. The
only conclusion to follow from these findings is that the dismissal
of the employee was substantively unfair. The next issue to
consider
is the remedy.
[26]
The full record of arbitration proceedings is before this Court. No
purpose would be served
in referring the matter back to the CCMA. The
company investigated the incident because Chauke “felt”
and “suspected”
that the employee had a bottle that
contained something “similar” to lemon juice. What
followed was a violation of
the employee’s right to privacy,
disguised as an investigation. His bag was searched without his
permission and in his absence.
The substance contained in the bottle
allegedly found in the employee’s bag was tasted in his
absence.
[27]
The
employee has sought the primary remedy of reinstatement. Section 193
of the LRA sets out the relief which a commissioner or
this Court may
grant upon finding that a dismissal was substantively and/or
procedurally unfair. Where a dismissal is found to
be substantively
unfair and the employee seeks to be reinstated, the primary remedy of
reinstatement must be awarded.
[8]
The employer bears the burden to prove that reinstatement should not
apply retrospectively.
[9]
The
employee is not guilty of the offence. He is entitled to
reinstatement. There is no reason to deprive him of full back pay.
[28]
In the premises, the following order is
made:
Order
1.
The arbitration award issued under case number GATW5788-20 dated
19
October 2021 is reviewed and set aside.
2.
The award is substituted with the following order:
‘
2.1.
The dismissal of the employee by the third respondent on 4 April 2020
is hereby declared substantively
unfair.
2.2.
The third respondent is ordered to reinstate the employee
retrospectively from the date of his
dismissal, on the same terms and
conditions of employment that existed prior to his dismissal and
without any loss of benefits.
2.3.
The third respondent is ordered to pay the employee back-pay from the
date of his dismissal until
the date he reports for duty within 14
days of this judgment and order.
2.4.
The employee is ordered to report for duty on 6 May 2024.’
3.
There is no order as to costs.
M. Makhura
Judge of the Labour Court
of South Africa
Appearances:
For the Applicant:
Mr. N. Lekala
(Union official)
For the Third
Respondent:
Mr. S. Khanya of
Ismail & Dahya Attorneys
[1]
Act
66 of 1995, as amended.
[2]
(2007) 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC).
[3]
(2023) 44 ILJ 1005 (LAC); [2023] 4 BLLR 283 (LAC).
[4]
[2008] ZALC 34
;
[2020] 7 BLLR 668
(LAC).
[5]
Ibid
at para 23.
[6]
Item
7 of Schedule 8 of the Code of Good Practice: Dismissal.
[7]
See: section 14 of the Constitution of the Republic of South Africa,
1996. The section provides that:
“
14
Privacy
Everyone has the right
to privacy, which includes the right not to have –
(a) their
person or home searched;
(b) their
property searched;
(c) their
possessions seized; or
(d) the
privacy of their communications infringed.”
[8]
Section 193(2) of the LRA; see
Booi
v Amathole District Municipality and Others
(2022) 43 ILJ 91 (CC);
[2022] 1 BLLR 1
(CC) at paras 39 – 40;
Notisi
v South African Police Service and others
[2023]
ZALAC 33
;
[2024] 4 BLLR 380
(LAC) at paras 58 – 60.
[9]
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and others
(2010)
31 ILJ 273 (CC);
[2010] 5 BLLR 465
(CC).